II 

112TH CONGRESS 

1ST SESSION S. 965 

To amend the Internal Revenue Code of 1986 to provide an income tax 

credit for the costs of certain infertility treatments, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 12, 2011 

Mrs. GILLIBRAND introduced the following bill; which was read twice and 

referred to the Committee on Finance 

A BILL 

To amend the Internal Revenue Code of 1986 to provide 

an income tax credit for the costs of certain infertility 

treatments, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Family Act of 2011’’. 

5 SEC. 2. FINDINGS. 

6 Congress finds the following: 

7 (1) The World Health Organization formally 

8 recognizes infertility as a disease, and the Centers 

9 for Disease Control and Prevention have stated that 

10 infertility is an emerging public health priority. 


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1 (2) According to the Centers for Disease Con2 trol and Prevention, approximately 3,000,000 have 

3 infertility. 

4 (3) Medical insurance coverage for infertility 

5 treatments is sparse and inconsistent at the State 

6 level—only 8 States have passed laws to require 

7 comprehensive infertility coverage, and under those 

8 State laws most employer-sponsored plans are ex9 empt; therefore, coverage for treatments such as in 

10 vitro fertilization is limited. According to Mercer’s 

11 2005 National Survey of Employer-Sponsored 

12 Health Plans, in vitro fertilization was covered by 19 

13 percent of large employer-sponsored health plans 

14 and only 11 percent of small employer-sponsored 

15 health plans. Even in States with coverage man16 dates, out-of-pocket expenses for these treatments 

17 are significant. 

18 SEC. 3. CREDIT FOR CERTAIN INFERTILITY TREATMENTS. 

19 (a) IN GENERAL.—Subpart A of part IV of sub20 chapter A of chapter 1 of the Internal Revenue Code of 

21 1986 is amended by inserting before section 24 the fol22 lowing new section: 


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1 ‘‘SEC. 23A. CREDIT FOR CERTAIN INFERTILITY TREAT2 MENTS. 

3 ‘‘(a) ALLOWANCE OF CREDIT.—In the case of an eli4 gible individual, there shall be allowed as a credit against 

5 the tax imposed by this chapter for the taxable year an 

6 amount equal to 50 percent of the qualified infertility 

7 treatment expenses paid or incurred during the taxable 

8 year. 

9 ‘‘(b) LIMITATIONS.— 

10 ‘‘(1) DOLLAR LIMITATION.—The aggregate 

11 amount of qualified infertility treatment expenses 

12 which may be taken into account under subsection 

13 (a) for all taxable years shall not exceed $13,360 

14 with respect to any eligible individual. 

15 ‘‘(2) INCOME LIMITATION.— 

16 ‘‘(A) IN GENERAL.—The amount otherwise 

17 allowable as a credit under subsection (a) for 

18 any taxable year (determined after the applica19 tion of paragraph (1) and without regard to 

20 this paragraph and subsection (c)) shall be re21 duced (but not below zero) by an amount which 

22 bears the same ratio to the amount so allowable 

23 as— 

24 ‘‘(i) the amount (if any) by which the 

25 taxpayer’s adjusted gross income exceeds 

26 $150,000; bears to 


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1 ‘‘(ii) $40,000. 

2 ‘‘(B) DETERMINATION OF ADJUSTED

3 GROSS INCOME.—For purposes of subparagraph 

4 (A), adjusted gross income shall be determined 

5 without regard to sections 911, 931, and 933. 

6 ‘‘(3) DENIAL OF DOUBLE BENEFIT.— 

7 ‘‘(A) IN GENERAL.—No credit shall be al8 lowed under subsection (a) for any expense for 

9 which a deduction or credit is taken under any 

10 other provision of this chapter. 

11 ‘‘(B) GRANTS.—No credit shall be allowed 

12 under subsection (a) for any expense to the ex13 tent that reimbursement or other funds in com14 pensation for such expense are received under 

15 any Federal, State, or local program. 

16 ‘‘(C) INSURANCE REIMBURSEMENT.—No 

17 credit shall be allowed under subsection (a) for 

18 any expense to the extent that payment for 

19 such expense is made, or reimbursement for 

20 such expense is received, under any insurance 

21 policy. 

22 ‘‘(4) LIMITATION BASED ON AMOUNT OF

23 TAX.—In the case of a taxable year to which section 

24 26(a)(2) does not apply, the credit allowed under 


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1 subsection (a) for any taxable year shall not exceed 

2 the excess of— 

3 ‘‘(A) the sum of the regular tax liability 

4 (as defined in section 26(b)) plus the tax im5 posed by section 55; over 

6 ‘‘(B) the sum of the credits allowable 

7 under this subpart (other than this section) and 

8 section 27 for the taxable year. 

9 ‘‘(c) CARRYFORWARDS OF UNUSED CREDIT.— 

10 ‘‘(1) RULE FOR YEARS IN WHICH ALL PER11 SONAL CREDITS ALLOWED AGAINST REGULAR AND

12 ALTERNATIVE MINIMUM TAX.—In the case of a tax13 able year to which section 26(a)(2) applies, if the 

14 credit allowable under subsection (a) exceeds the 

15 limitation imposed by section 26(a)(2) for such tax16 able year reduced by the sum of the credits allowable 

17 under this subpart (other than this section), such 

18 excess shall be carried to the succeeding taxable year 

19 and added to the credit allowable under subsection 

20 (a) for such succeeding taxable year. 

21 ‘‘(2) RULE FOR OTHER YEARS.—In the case of 

22 a taxable year to which section 26(a)(2) does not 

23 apply, if the credit allowable under subsection (a) 

24 exceeds the limitation imposed by subsection (b)(4) 

25 for such taxable year, such excess shall be carried to 


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1 the succeeding taxable year and added to the credit 

2 allowable under subsection (a) for such succeeding 

3 taxable year. 

4 ‘‘(3) LIMITATION.—No credit may be carried 

5 forward under this subsection to any taxable year 

6 after the 5th taxable year after the taxable year in 

7 which the credit arose. For purposes of the pre8 ceding sentence, credits shall be treated as used on 

9 a first-in first-out basis. 

10 ‘‘(d) QUALIFIED INFERTILITY TREATMENT EX11 PENSES.—For purposes of this section— 

12 ‘‘(1) IN GENERAL.—The term ‘qualified infer13 tility treatment expenses’ means amounts paid or in14 curred for the treatment of infertility via in vitro 

15 fertilization if such treatment is— 

16 ‘‘(A) provided by a licensed physician, li17 censed surgeon, or other licensed medical prac18 titioner, and 

19 ‘‘(B) administered with respect to a diag20 nosis of infertility by a physician licensed in the 

21 United States. 

22 ‘‘(2) TREATMENTS IN ADVANCE OF INFER23 TILITY ARISING FROM MEDICAL TREATMENTS.—In 

24 the case of expenses incurred in advance of a diag25 nosis of infertility for fertility preservation proceVerDate Mar 15 2010 04:31 May 18, 2011 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S965.IS S965

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1 dures which are conducted prior to medical proce2 dures that, as determined by a physician licensed in 

3 the United States, may cause involuntary infertility 

4 or sterilization, such expenses shall be treated as 

5 qualified infertility treatment expenses— 

6 ‘‘(A) notwithstanding paragraph (1)(B), 

7 and 

8 ‘‘(B) without regard to whether a diagnosis 

9 of infertility subsequently results. 

10 Expenses for fertility preservation procedures in ad11 vance of a procedure designed to result in infertility 

12 or sterilization shall not be treated as qualified infer13 tility treatment expenses. 

14 ‘‘(3) INFERTILITY.—The term ‘infertility’ 

15 means the inability to conceive or to carry a preg16 nancy to live birth, including iatrogenic infertility re17 sulting from medical treatments such as chemo18 therapy, radiation or surgery. Such term does not 

19 include infertility or sterilization resulting from a 

20 procedure designed for such purpose. 

21 ‘‘(e) ELIGIBLE INDIVIDUAL.—For purposes of this 

22 section, the term ‘eligible individual’ means an indi23 vidual— 

24 ‘‘(1) who has been diagnosed with infertility by 

25 a physician licensed in the United States, or 


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1 ‘‘(2) with respect to whom a physician licensed 

2 in the United States has made the determination de3 scribed in subsection (d)(2). 

4 ‘‘(f) FILING REQUIREMENTS.—Married taxpayers 

5 must file joint returns. Rules similar to the rules of para6 graphs (2), (3), and (4) of section 21(e) shall apply for 

7 purposes of this section. 

8 ‘‘(g) ADJUSTMENTS FOR INFLATION.— 

9 ‘‘(1) DOLLAR LIMITATIONS.—In the case of a 

10 taxable year beginning after December 31, 2012, the 

11 dollar amount in subsection (b)(1) shall be increased 

12 by an amount equal to— 

13 ‘‘(A) such dollar amount; multiplied by 

14 ‘‘(B) the cost-of-living adjustment deter15 mined under section 1(f)(3) for the calendar 

16 year in which the taxable year begins, deter17 mined by substituting ‘calendar year 2011’ for 

18 ‘calendar year 1992’ in subparagraph (B) 

19 thereof. 

20 If any amount as increased under the preceding sen21 tence is not a multiple of $10, such amount shall be 

22 rounded to the nearest multiple of $10. 

23 ‘‘(2) INCOME LIMITATION.—In the case of a 

24 taxable year beginning after December 31, 2002, the 


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1 dollar amount in subsection (b)(2)(A)(i) shall be in2 creased by an amount equal to— 

3 ‘‘(A) such dollar amount; multiplied by 

4 ‘‘(B) the cost-of-living adjustment deter5 mined under section 1(f)(3) for the calendar 

6 year in which the taxable year begins, deter7 mined by substituting ‘calendar year 2001’ for 

8 ‘calendar year 1992’ in subparagraph (B) 

9 thereof. 

10 If any amount as increased under the preceding sen11 tence is not a multiple of $10, such amount shall be 

12 rounded to the nearest multiple of $10.’’. 

13 (b) CONFORMING AMENDMENTS.— 

14 (1) The table of sections for subpart A of part 

15 IV of subchapter A of chapter 1 of the Internal Rev16 enue Code of 1986 is amended by inserting before 

17 the item relating to section 24 the following new 

18 item: 

‘‘Sec. 23A. Credit for certain infertility treatments.’’. 

19 (2) Section 36C(b)(4) of such Code is amended 

20 by striking ‘‘section 25D’’ and inserting ‘‘sections 

21 23A and 25D’’. 

22 (3) Section 25(e)(1)(C)(ii) of such Code is 

23 amended by inserting ‘‘23A,’’ before ‘‘24,’’. 


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1 (4) Section 25D(c)(1)(B) of such Code is 

2 amended by striking ‘‘section 27’’ and inserting 

3 ‘‘sections 23A and 27’’. 

4 (5) Section 1400C(d)(1) of such Code is 

5 amended by striking ‘‘section 25D’’ and inserting 

6 ‘‘sections 23A and 25D’’. 

7 (6) Section 1400C(d)(2) of such Code is 

8 amended by inserting ‘‘23A,’’ after ‘‘23,’’. 

9 (c) EFFECTIVE DATE.—The amendments made by 

10 this section shall apply to taxable years beginning after 

11 December 31, 2011. 

Æ 


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